Opinion
NO. 2012-CA-000359-MR
01-18-2013
DEMETRIUS MARQUISE ADAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Demetrius M. Adams Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 97-CR-01407
OPINION
AFFIRMING
BEFORE: KELLER, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: Adams appeals the Fayette Circuit Court's order denying his successive CR 60.02 motion for relief from the court's judgment against him. After a careful review of the record, we affirm because his motion is untimely and, alternatively, it lacks merit.
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial, Adams was convicted of first-degree rape; first-degree sodomy; two counts of kidnapping; two counts of first-degree robbery; and of being a second-degree persistent felony offender (PFO-2nd). He was sentenced to a total of one hundred eighty years of imprisonment.
Adams appealed, and the Kentucky Supreme Court affirmed. See Adams v. Commonwealth, No. 98-SC-250-MR (Ky. Apr. 22, 1999) (unpublished).
Adams filed an RCr 11.42 motion to vacate his sentence contending, inter alia, that victim Kendrick Searight, who is Adams's cousin, was coerced by a detective into identifying Adams as the perpetrator. The circuit court denied the motion.
Kentucky Rule of Criminal Procedure.
Adams appealed, and while his appeal was pending, he moved in the circuit court for relief from the court's judgment pursuant to CR 60.02, claiming that Searight was under duress and he was coerced by police into identifying Adams as the perpetrator. The circuit court denied the motion.
Adams appealed the denial of his CR 60.02 motion, and this Court considered the appeals from both the circuit court's order denying his RCr 11.42 motion and its order denying his CR 60.02 motion together and ultimately affirmed the circuit court's decisions in both cases. See Adams v. Commonwealth, Nos. 2001-CA-000227-MR, 2001-CA-002273-MR, 2003 WL 1246357, *1 (Ky. App. Feb. 14, 2003) (unpublished). The Kentucky Supreme Court denied discretionary review.
Adams filed a second CR 60.02 motion contending that he should be granted a new trial based upon inconclusive DNA evidence. The circuit court denied the motion, finding that this claim could have been brought in Adams's RCr 11.42 motion and, therefore, that he was barred from bringing it in his CR 60.02 motion. The court also noted that this motion failed to satisfy the "reasonable time" requirement for bringing such a motion under CR 60.02.
Adams appealed the denial of his second CR 60.02 motion and this Court affirmed the circuit court's decision. See Adams v. Commonwealth, No. 2006-CA-000910-MR, 2007 WL 1378461, *1 (Ky. App. 2007) (unpublished).
Adams filed his third CR 60.02 motion, which is the subject of the present appeal, in July 2011. In that motion, Adams alleged that he was actually innocent and that Searight signed a sworn affidavit earlier that year stating that he was threatened by the Lexington Police into identifying Adams as the perpetrator back in 1997. Searight's sworn affidavit stated, in pertinent part, as follows:
On June 24, 1997 I was interviewed by the Lexington Police. I was told by the police to identify my cousin Demetrius Adams in a picture line-up. This was after I had told them that I did not see anyone because I had black[ed] out. The Police then explained to me that I would get time if I did not pick him out of the pictures. I know that Demetrius Adams did not commit the crimes he was convicted of [b]ut I had to pick him out or I would be in [p]rison.
The circuit court denied Adams's motion, finding that CR 60.02(b) requires a CR 60.02 motion based upon newly discovered evidence to be brought within one year of the final judgment. The court noted that Adams was convicted on March 17, 1998 and this CR 60.02 motion was brought more than a decade later, on July 5, 2011. Additionally, the court stated as follows:
We pause to note that in its order denying Adams's third CR 60.02 motion, the circuit court mistakenly referred to it as Adams's "Second RCr 60.02 Motion." Not only was it Adams's third, rather than second, CR 60.02 motion, but the circuit court erred in referring to the rule it was brought under as "RCr 60.02," rather than "CR 60.02."
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This Court is not persuaded that Movant's characterization of Searight's testimony would change the result in Movant's case; rather it agrees with the Commonwealth that Searight, Movant's cousin, has not made any new statements at all. In fact, Movant is mistaken as to coercion employed by the Commonwealth as to the testimony of Searight. In his testimony, Searight was asked to identify his cousin - not the alleged perpetrator - from several photos. Thus, Searight was not coerced into identifying Movant as a criminal actor, but only asked to identify his cousin, which Searight did.
Adams now appeals, contending that the circuit court erred in denying his CR 60.02 claim of actual innocence.
II. STANDARD OF REVIEW
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id. Moreover, CR 60.02 motions based upon claims of newly discovered evidence must be filed within one year of the judgment. See CR 60.02.
III. ANALYSIS
As previously noted, Adams's present CR 60.02 motion is his third such motion. However, Civil Rule 60.02 does not provide for successive post-conviction motions. See Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
Additionally, to the extent that Adams claims in his present CR 60.02 motion that Searight was under duress and coerced by police into identifying Adams as the perpetrator, Adams previously raised this claim in his RCr 11.42 motion and in his first CR 60.02 motion. Therefore, it was not properly brought in the present motion because he asserted this claim previously. See McQueen, 948 S.W.2d at 416.
Furthermore, Adams's CR 60.02 motion was based upon what he alleged was newly discovered evidence in the form of an affidavit from a victim, who was his cousin, recanting his earlier statements. However, pursuant to CR 60.02, a motion under that rule based upon newly discovered evidence shall not be brought more than one year after the judgment was entered. Therefore, Adams's motion, brought more than a decade after his judgment was entered, was untimely.
Alternatively, even if the motion did not fail based upon the aforementioned procedural grounds, it nonetheless lacks merit. Adams's motion is based upon an affidavit from one of the victims in which this particular victim allegedly recants his prior statements. However,
there are special rules for situations of recanted testimony. The general rules are that recanting testimony is viewed with suspicion; mere recantation of testimony does not alone require the granting of a new trial; only in extraordinary and unusual circumstances will a new trial be granted because of recanting statements; such statements will form the basis for a new trial only when the court is satisfied of their truth; the trial judge is in the best position to make the determination because he has observed the witnesses and can often discern and assay the incidents, the influences and the motives that prompted the recantation; and his rejection of the recanting testimony will not lightly be set aside by an appellate court.Thacker v. Commonwealth, 453 S.W.2d 566, 568 (Ky. 1970). "Affidavits in which witnesses recant their testimony are quite naturally regarded with great distrust and usually given very little weight." Hensley v. Commonwealth, 488 S.W.2d 338, 339 (Ky. 1972).
In the present case, the recanting affidavit was by Searight, who is Adams's cousin. As the aforementioned case law notes, recanting affidavits are viewed with great distrust and are given very little weight. This seems particularly appropriate when the affidavit is provided by a relative of the person convicted because pressure from family is likely to coerce such a witness into recanting his earlier statement upon which the relative's conviction was based. In one of Adams's prior appeals, this Court discussed the extensive evidence against Adams, which included physical evidence linking him to the female victim, as follows:
Excluding the disputed physical evidence (hair and fiber), the remaining evidence presented in support of conviction was overwhelming. Adams was convincingly identified as one of the perpetrators by both Searight and the female victim. The female victim made a concentrated effort to look beneath her blindfold in order to see her attackers. She noted Adams's appearance more than four times during the course of the crime, and she described Adams accurately and thoroughly to a police detective at a time when the events and her observations were fresh in her mind. Additionally, she made a positive in-court identification of Adams as one of the perpetrators. Physical evidence recovered from the female victim linked Adams to the sexual assault and was not subject to suppression. Adams's residence was in the neighborhood identified by the female victim as the area to which she and Searight had been abducted. Finally, and perhaps most significantly, [Adams's co-defendant's] confession specifically inculpating Adams and corroborating the victim's testimony was credible. It was detailed, bolstered by evidence recovered from a third-party, and subjected [the co-defendant] himself to criminal prosecution.Adams, Nos. 2001-CA-000227-MR, 2001-CA-002273-MR, 2003 WL 1246357, at *2 (Ky. App. Feb. 14, 2003) (unpublished).
Based upon the extensive evidence against Adams, which goes beyond any statements Searight made against him, the circuit court did not abuse its discretion in denying Adams's CR 60.02 motion based upon the alleged recanting affidavit of Adams's cousin.
Accordingly, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Demetrius M. Adams
Pro se
Eddyville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky